Denver Bar Association
October 2007
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Is Habeas Corpus a Corpse?

by Craig Eley

I celebrated Constitution Day a few weeks ago by taking the day off work, cracking open a case of Samuel Adams and reading the U.S. Constitution. I’m sure you did the same. After the first couple of articles, I’ll admit I got a little bored with the Constitution, so I called Blockbuster to see if they had the film version in stock. No dice. I could get The Ten Commandments, but not The Constitution. So, I put the Constitution down and went to the mall, hunting for those once-a-year Constitution Day Sale-a-Thons.

I noticed while at the stores that, surprisingly, few people were celebrating Constitution Day. No sales; no red, white and blue signs; no images of Franklin, Hamilton or their ilk. It didn’t look like anyone was even into the spirit of the holiday. For example, at Home Depot I picked up a new metal pole for my bird feeder. When the clerk rang it up, I gave him just the amount shown on the price sticker. He told me that wasn’t enough, I had to include tax. I said, "What about the 24th Amendment to the United States Constitution?" He replied, "What about it?" "It abolished the poll tax!" I exclaimed, to no one’s amusement but my own. The guy didn’t even seem to get the joke.

Aye, there’s the rub. It seems that no one knows anything about the Constitution anymore, much less the 24th amendment. And that’s the whole reason for Constitution Day. U.S. Sen. Robert Byrd, who, legend has it, keeps a copy of the Constitution in his pocket at all times, slipped a little wording into the federal 2004 spending bill that created Constitution Day on Sept. 17 of each year. Not only that, but he included a mandate that all educational institutions that receive federal money (probably 99 percent of all public and private schools in the country) had to take time out on every Constitution Day to teach about the Constitution.

Some critics have urged Sen. Byrd to actually take the Constitution out of his back pocket and read the thing, especially the 10th Amendment, which provides, in its entirety:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

They make the point that nowhere in the Constitution does it give Congress the power to tell schools what to teach or when to teach it, so Sen. Byrd’s pet legislation is, itself, unconstitutional. But that is of no import. Sen. Byrd did not include any enforcement mechanism (and certainly no funding mechanism), so schools across the country essentially ignore this mandate. Therefore, no one is inclined to make a federal case out of it, which is the only way to be sure it is or is not constitutional.

The passing of Constitution Day 2007 without a whimper is, in some respects, unfortunate, because all of us could do with a brush-up on that document once a year. This has become even more evident in light of recent events that have demonstrated that, rather than being a staid and static document, the Constitution is a living thing, which evolves and changes year to year.

The first manifestation of this phenomenon in 2007 came in mid-January, when then-U.S. Attorney General Alberto Gonzales was testifying before a Senate committee, and the inconvenient subject of the writ of habeas corpus came up. For those readers who chose to take "The Law of Space" in law school instead of "The Historic Foundations of Anglo-American Law," a brief look backwards may be helpful to understand all the hoopla surrounding this ancient writ.

In 1215, King John of England reluctantly agreed to the terms of a document known as the Magna Carta. Article 39 provides:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

This language is cited by some as the first written manifestation of the writ of habeas corpus (also known as the Great Writ), although there is evidence that it existed long before 1215. And, like most Americans, I was taught in high school that habeas corpus is one of the most celebrated protections of liberty enshrined in our Constitution.

Sorry, my lawyer ate your habeas corpus

But things change. When the attorney general testified before a Senate committee on Jan. 18, 2007, this colloquy took place between him and Sen. Arlen Specter, a fellow Republican and a former district attorney:

Gonzales: … there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme —

Specter: Now, wait a minute. Wait a minute. The Constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

Gonzales: I meant by that comment, the Constitution doesn’t say, "Every individual in the United States or every citizen is hereby granted or assured the right to habeas." It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —

Specter: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

I’m not sure what "treading on interdiction" means, but it doesn’t sound like something I would want to do anytime soon. Treading on the writ of habeas corpus, however, is another matter, and one that seems to have agitated Sen. Specter. Despite Attorney General Gonzales’ assurances that the writ of habeas corpus is not a protection guaranteed by the Constitution, Sen. Specter clearly wasn’t buying it. This disagreement could perhaps be chalked up simply to what one law school teaches versus another — Specter went to Yale, Gonzales to Harvard. Let’s take a look at what actually is written in the Constitution in Article I, Section 9:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Apparently, what the attorney general was saying was that although there is a prohibition on suspending habeas corpus, there is no actual affirmative grant of the right to habeas corpus in the Constitution. In other words, just because the government cannot suspend habeas corpus doesn’t necessarily mean anyone had the right to habeas corpus to begin with.

It’s easy to see how, in the 572 years between the creation of each document, a little thing like the right to habeas corpus could be dropped during the transition from the Magna Carta to the Constitution — perhaps lying on the cutting-room floor of the Constitutional Convention somewhere. Seeing as I did not have the good fortune of attending Harvard Law School, I normally would bow to the superior knowledge of the attorney general on this point. But a few words drifted back to me from Professor Beaney’s Con Law class all those decades ago, prompting me to look up the wording of another part of the Constitution, the First Amendment. Here is what I found:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Wow. Just like the habeas corpus provision, this amendment is phrased in the negative. If the attorney general’s reasoning is applied to the First Amendment, he would say that there is no express constitutional grant of freedom of speech. Thus, just because Congress cannot abridge freedom of speech doesn’t mean we were ever entitled to such a freedom in the first place. Given the history of the attorney general’s boss in glossing over habeas corpus, if I were The New York Times, I’d be sweating right now.

Later in his testimony, the attorney general acknowledged habeas corpus as "one of our most cherished rights," but maintained that it is a right granted by statute, not the Constitution. Congress giveth and Congress taketh away.

And so the Constitution evolves before our eyes, as it transmogrifies to meet the needs of a complex society. And that’s not the only change I’ve noticed. For example, in school I learned that when the president is presented with a bill passed by Congress, he could take three actions: sign it, veto it or do nothing with it. Maybe I was asleep during high school civics class when "signing statements" were discussed. I only heard of these creatures a few months ago, and as best I can figure they occur when the president approves a bill, and then makes a statement that, despite its terms, the bill will not apply to him and maybe not to the entire executive branch.

Where did that come from? I hate to keep harping on what’s in the Constitution, but Article II, Section 3 requires that the president "shall take Care that the Laws be faithfully executed. …" It doesn’t say that he can choose to ignore those laws he doesn’t like. If he doesn’t like a law, he can veto it. That’s something the Constitution does say he can do.

Now, like Sen. Specter, perhaps I am becoming a little agitated (the use of italics twice in two sentences is a dead giveaway). Maybe Sen. Byrd has the right idea. Next Sept. 17, why don’t we all take the day off and read the Constitution. It could do us all good — whether we are in Colorado, Washington, D.C., or even Cambridge, Mass.

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